1988 PLP 302 (SCMR)

SHAFIUR RAHMAN, J.--The petitioner, a complainant, seeks leave to appeal against the judgment of the Lahore High Court dated the 12th of January, 1981 whereby the five respondents convicted of the offences under sections 302/149, 148 and 458 P.P.C. were acquitted of the charges and ordered to be released forthwith. The sentence of death awarded to Noora was not confirmed. Mst. Jannat (P.W.11) was, according to the prosecution case, engaged to Noora, respondent No. 1 but the engagement was not honoured and she was married to Haq Nawaz, the deceased about five months before the occurrence. On the night of 5th/6th September, 1979, the family of Haq Nawaz was asleep in their house in village Mandhora Kalan at the distance of six miles from the Police Station Jalalpur Bhattian, District Gujranwala. At night Mst. Jannat Bibi (PW.9) his sister was awakened by the foot-steps of a number of persons who had scaled over the wall and entered the courtyard. There was a lantern in whose light Mst. Janat Bibi (PW.9) identified the accused though she came to know about their names and addresses afterwards. Ali, respondent had caught hold of the deceased by the legs and Shera by the arms when Noora respondent inflicted hatchet blows. So did Khan and Mansha. The deceased expired at the spot. A report about the occurrence was lodged the next day at 7 a.m. The respondents denied their participation in the occurrence or the engagement of Mst. Jannat with Noora and their grievance on account of her marriage with Haq Nawaz. The High Court examined the evidence in depth and disbelieved the motive and the presence of the lantern to facilitate the identification and came to the conclusion as hereunder

"Apparently, it was a dark night and the occurrence took place at the later part of the night while the deceased was asleep. In such circumstances, if the culprits or assailants had come with the intention to murder the deceased, it was unnatural on their part that two of them should hold the arms and legs of the deceased while the others inflicted hatchet injuries on the upper part of his body. It is reasonably probable that the deceased was incapacitated to raise alarm with the first blow and then the subsequent blows were given. While the deceased was done to death without having any opportunity of raising alarm, the assailants managed to escape unidentified and unwitnessed." Finally, the learned Judges of the High Court concluded as follows:

"In the light of the above discussion, we are convinced in our mind that the prosecution has not succeeded in establishing its case as against the appellants beyond any shadow of doubt and the benefit of doubt should have been given to them which we hereby give to the appellants. The result is that their convictions as well as sentences awarded to them are hereby set aside and they are acquitted." The learned counsel for the petitioner submitted that the witnesses produced at the trial were natural witnesses, the mother and the sister and motive stood proved by the wife of the deceased. They had the opportunity to witness the occurrence and to identify the respondents. It is admittedly a night occurrence. It was a dark night. The identification of the assailants had, therefore, to be established beyond reasonable doubt. In the case in hand Mst. Jannat Bibi (P.W.9) admitted that she not only identified them by the face but she came to know about their names and addresses afterwards. Such an identification without an identification parade which could link it with the accused would not be sufficient. Besides, the view of the evidence taken by the High Court does not appear to be in violation of any principle of law or any provision of it. It is only a question of appraisal of evidence. We do not consider it a fit case for leave to appeal which is hereby refused. M.I./J-16/S Petition dismissed.